I'm not entirely sure how this relates to the distinction I drew, but it
seems to me that any rule that pertains to what the *government* can do
within a constitutional framework in which your hypos are not hard-wired is
subject to constitutional scrutiny: so if a law (not a constitutional
amendment) says that voters have to approve all contracts, grants,
employment agreements, and so forth, then if the law were a subterfuge for
otherwise impermissible discrimination, one might raise constitutional
objections. If the basic structure of the polity (for example, a provision
in the constitution) required this type of voter approval, then there would
be no recourse other than to 1) lump it; 2) try to change it by whatever
means were available for amending it; 3) find a more congenial polity. In
other words, if all you have to fall back on is some notion of natural
justice, that's not, um, justiciable.
Have I understood your point correctly?
On Tue, Sep 22, 2009 at 7:05 PM, Brownstein, Alan
<aebrownstein at ucdavis.edu>wrote:
> I don’t doubt that there is a line here, but I’m having a lot of trouble
> drawing it. Is the critical fact that voters are rejecting individuals one
> at a time while discriminatory policies operate more generally (sort of a
> distinction between administrative and legislative action)? And are we only
> talking about voters rejecting individuals who work directly for the
> government? What about voter rejection of individual contracts with
> suppliers of goods because of the supplier’s race or religion? What about
> government grants? Would it be constitutional to require that every grant a
> state provided to a non-profit organization must be subject to voter
> approval even though that results in the consistent rejection of grants to
> faith-based organizations representing minority religions? What about
> referenda reviewing land use decisions? Would there be a constitutional
> problem if the voters continually rejected zoning for the houses of worship
> of minority faiths while they approved similar zoning requests for the
> houses of worship of more popular faiths?
>>>> Alan Brownstein
>>>>>>>> *From:* religionlaw-bounces at lists.ucla.edu [mailto:
>religionlaw-bounces at lists.ucla.edu] *On Behalf Of *Vance R. Koven
> *Sent:* Tuesday, September 22, 2009 1:43 PM
>> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Evaluating candidates based on their religious views
>>>> I suspect that the analysis here is based on something even more
> fundamental than constitutional law, which is republican government theory.
> Since in a republican polity the people *are* sovereign, constitutional
> analysis is limited to the institutions and processes the people select to
> effect their chosen governmental structure. Therefore, although a
> constitution can specify that organs of state can determine qualification to
> vote, and what sorts of things voters can do directly (e.g. referendums),
> the direct powers and the limitations on the powers of governmental bodies
> have to be driven by the sovereign public. One example of how this plays out
> is in amendments: assuming one follows the methodology prescribed by the
> constitution, a constitutional amendment can't itself be "unconstitutional."
> All of which is a long way of saying that Eugene is specifically right that
> if the people wanted the institutions of government to be able to limit the
> motivations on which voters can vote, the constitution would have to specify
> that pretty clearly as a limitation on popular sovereignty.
>>>> The difference between collusively voting for or against someone based on
> religion (or any other criterion) and collusively voting to enact a law that
> only people fulfilling a particular criterion are eligible for a position,
> is the difference between direct sovereign conduct and the manipulation of
> governmental institutions. Since the constitution describes how the latter
> can be done, failing to do it that way makes the action subject to
> constitutional attack. Contrast a collusive vote (if this were possible) to
> amend the constitution to require the same thing that the putative law would
> require, and that would be (at least legally) unassailable.
>>>> Vance
>> On Tue, Sep 22, 2009 at 3:28 PM, Volokh, Eugene <VOLOKH at law.ucla.edu>
> wrote:
>> The last question reminds me of Justice Powell’s dissent in
> *Branti v. Finkel*, where he pointed out that “The voters of Rockland
> County are free to elect their public defender and assistant public
> defenders instead of delegating their selection to elected and appointed
> officials. Certainly the Court's holding today would not preclude the
> voters, the ultimate "hiring authority," from choosing both public defenders
> and their assistants by party membership. The voters' choice of public
> officials on the basis of political affiliation is not yet viewed as an
> inhibition of speech; it is democracy. Nor may any incumbent contend
> seriously that the voters' decision not to reelect him because of his
> political views is an impermissible infringement upon his right of free
> speech or affiliation. In other words, the operation of democratic
> government depends upon the selection of elected officials on precisely the
> basis rejected by the Court today.”
>>>> Yet that didn’t carry the day, presumably because voters –
> the sovereign – are entitled to make election decisions on bases that
> government officials may not use in appointment decisions. This may be
> especially unappealing when the basis is race or religion, as opposed to
> ideology, but I think the underlying constitutional analysis must be
> similar: The voters’ choice of public officials on any basis the voters
> please, and not just ideology, is democracy. Surely if, to borrow from *
> Ricci*, black voters give preference to black candidates over more
> qualified white or Hispanic candidates – for any office, high or low – that
> is no constitutional violation.
>>>> Eugene
>>>> Alan Brownstein writes:
>>>> I don’t have a satisfactory analysis of this issue either, but there are
> lots of interesting hypos that push the edge of the envelope. Two examples:
>>>> Would the primary of a political party limited to candidates of a
> particular faith be constitutional?
>>>> By analogy to the firefighter’s Title VII case from last term. The names of
> the top ten candidates for promotion to Captain or other leadership
> positions in the fire department (the candidates who scored highest on the
> exams and tests used for promotions) are submitted to the voters for
> approval. All candidates of a particular religion (or race) are regularly
> rejected by the electorate, even if they have the highest scores. Are these
> promotion decisions constitutional?
>>>>> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw>> Please note that messages sent to this large list cannot be viewed as
> private. Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>>>>> --
> Vance R. Koven
> Boston, MA USA
>vrkoven at world.std.com>> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw>> Please note that messages sent to this large list cannot be viewed as
> private. Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
--
Vance R. Koven
Boston, MA USA
vrkoven at world.std.com
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/religionlaw/attachments/20090922/dea9a128/attachment.htm>